Delhi District Court
Sh. Ram Mohan Gupta vs Sh. Kuldeep Chand on 3 April, 2018
sIN THE COURT OF JSCCASCJGJ, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 465/2017
Sh. Ram Mohan Gupta
R/o 15/2, Kotla Village, Near Mayur ViharI,
Delhi. ... Plaintiff
Versus
Sh. Kuldeep Chand
S/o Sh. Rawan S. Dogra,
R/o D58, Harijan Basti, Budh Vihar,
Kondli, Delhi. ... Defendant
SUIT FOR RECOVERY OF RS.1,00,000/
(RUPEES ONE LAC ONLY) ALONGWITH
COSTS AND INTEREST AT THE RATE OF 24%
PER ANNUM FILED UNDER ORDER XXXVII,
CODE OF CIVIL PROCEDURE, 1908
DATE OF INSTITUTION : 05.06.2017
DATE OF ARGUMENTS : 20.03.2018
DATE OF DECISION : 03.04.2018
JUDGMENT
1. The plaintiff has filed the present suit under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 ("CPC") on the basis of cheque no. 339683 dated 24.08.2015 of Rs.1,00,000/, drawn by the defendant upon Syndicate Bank, Rani Jhansi Road, New Delhi110055.
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2. The plaintiff has prayed in the plaint of the present suit that a decree be passed in favour of the plaintiff and against the defendant, for a sum of Rs.1,00,000/ along with costs as well as pendentelite interest and future interest at the rate of 24% per annum.
3. In order to justify the aforesaid recovery of money from the defendant, the plaintiff has interalia pleaded in the plaint of the present suit that the plaintiff and defendant had a friendly relationship; that in August 2014, the defendant had approached the plaintiff and requested for grant of a friendly loan of Rs.1,00,000/, with the stipulation that it would be repaid by the defendant, after the expiry of one year; that keeping in view the friendly relationship with the defendant, the plaintiff had given the amount of Rs.1,00,000/ to the defendant on 24.08.2014 at his residence; that after expiry of one year viz. in August, 2015, the defendant had offered to repay the friendly loan of Rs.1,00,000/ to the plaintiff by issuing cheque no. 339683 dated 24.08.2015 of Rs.1,00,000/, drawn upon Syndicate Bank, Rani Jhansi Road, New Delhi110055, in favour of the plaintiff; that the plaintiff had presented the said cheque for encashment through his banker viz. Dena Bank, Mayur ViharI, Delhi; that the said cheque was returned unpaid to the plaintiff vide memo dated 26.08.2015 with the remarks "funds insufficient"; that the plaintiff had informed the said fact to the defendant and the defendant had requested the plaintiff for grant of some more time to repay the friendly loan of Rs.1,00,000/; that thereafter, the plaintiff had contacted the defendant, but the defendant had intentionally and deliberately avoided repaying the friendly loan of Rs.1,00,000/ to the Civil Suit No.465/2017 Ram Mohan Gupta v Kuldeep Chand Page no.2 of 6 plaintiff; that on account of the failure of the defendant to repay the friendly loan of Rs.1,00,000/, the plaintiff had served legal notice dated 17.05.2017 upon the defendant through speed post and courier, inter alia calling upon the defendant to repay the friendly loan of Rs.1,00,000/ and that despite service of the legal notice dated 17.05.2017, the defendant had not repaid the friendly loan of Rs.1,00,000/, to the plaintiff.
4. A perusal of the ordersheets of the present suit reveals that upon filing of the present suit, the summons as prescribed under Form IV, Appendix B, Schedule 1 of CPC were ordered to be issued qua the defendant, by the Ld. Predecessor Judge, on 06.06.2017. The said summons were served upon the defendant on 12.07.2017. Upon such service, the defendant had filed his appearance under Order XXXVII Rule 2(3) of CPC, 1908, and an application for condonation of delay in filing of the said appearance, under Order XXXVII Rule 3(7) of CPC, 1908, on 30.08.2017.
5. I had heard Sh. Vinod Kumar Goyal, Ld. Advocate for the plaintiff visavis the aforesaid appearance and application of the defendant, on 20.03.2018. On that day, none had appeared on behalf of the defendant.
6. On 20.03.2018, the Ld. Advocate for the plaintiff had submitted that the application filed by the defendant under Order XXXVII Rule 3(7) of CPC, 1908 qua condonation of delay in filing of appearance Civil Suit No.465/2017 Ram Mohan Gupta v Kuldeep Chand Page no.3 of 6 under Order XXXVII Rule 2(3) of CPC, 1908 should be dismissed by this Court because the only ground pleaded in the said application qua the delay in filing of the appearance under Order XXXVII Rule 2(3) of CPC, 1908, is 'ignorance of law' of the defendant and because the intent of the defendant is to delay repayment of friendly loan of Rs.1,00,000/ to the plaintiff. Also, the Ld. Advocate for the plaintiff had submitted that once the application filed by the defendant under Order XXXVII Rule 3(7) of CPC, 1908 is dismissed by this Court, the present suit should be decreed in favour of the plaintiff and against the defendant, in view of the specific mandate of Order XXXVII, Rule 2(3) of CPC, 1908.
7. After perusing the record of the Court file and considering the submissions made by the Ld. Advocate for the plaintiff on 20.03.2018, I find that the application filed by the defendant under Order XXXVII Rule 3(7) of CPC, 1908 qua condonation of delay in filing of appearance under Order XXXVII Rule 2(3) of CPC, 1908, is liable to be dismissed because the only ground pleaded in the said application is 'ignorance of law' of the defendant, which is untenable in law. Further, I find that even if the said application were to be allowed by this Court, no benefit would accrue to the defendant because the appearance filed by the defendant under Order XXXVII Rule 2(3) of CPC, 1908, was not filed by the defendant, as per the provisions of Order XXXVII of CPC, 1908. In this regard, it is noteworthy that the appearance filed by the defendant under Order XXXVII Rule 2(3) of CPC, 1908, does not bear the address of the defendant, as warranted by Order XXXVII Rule 3(1) of CPC, 1908. Also, it is noteworthy that before filing of the said appearance, the defendant Civil Suit No.465/2017 Ram Mohan Gupta v Kuldeep Chand Page no.4 of 6 had not given any notice of filing of the said appearance, to the Ld. Advocate for the plaintiff, as warranted by Order XXXVII Rule 3(3) of CPC, 1908.
8. In view of the foregoing reasons, the application filed by the defendant under Order XXXVII Rule 3(7) of CPC, 1908 qua condonation of delay in filing of appearance under Order XXXVII Rule 2(3) of CPC, 1908, is dismissed and the appearance filed by the defendant under Order XXXVII Rule 2(3) of CPC, 1908, on 30.08.2017, is not accepted.
9. In Order XXXVII Rule 2(3) of CPC, 1908, it is stipulated that if in a suit filed under the provisions of Order XXXVII of CPC, 1908, the defendant does not enter his appearance, as per Order XXXVII Rule 3(1) and Rule 3(3) of CPC, 1908, then the defendant cannot be permitted to defend the suit and the allegations made in the plaint are to be deemed to have been admitted by the defendant. Keeping in view the specific mandate of Order XXXVII, Rule 2(3) of CPC, 1908, the fact that the present suit has been filed within the prescribed period of limitation by the plaintiff and the fact that the pleadings made in paragraph 11 of the plaint of the present suit qua the territorial jurisdiction of this Court to entertain this suit, have remained unrebutted by the defendant, the present suit is hereby decreed for a sum of Rs.1,00,000/ (Rupees One Lac Only) along with costs in favour of the plaintiff and against the defendant.
10. In the prayer clause of the plaint, the plaintiff has claimed Civil Suit No.465/2017 Ram Mohan Gupta v Kuldeep Chand Page no.5 of 6 pendentelite interest and future interest at the rate of 24% per annum. In view of Section 80 of the Negotiable Instruments Act, 1881, the plaintiff is granted pendentelite interest at the rate of 18% per annum. Further, in view of Order XXXVII Rule 2(3) of CPC, 1908, the prayer for grant of future interest is declined. Thus, it is ordered that the plaintiff shall only be entitled to pendentelite interest at the rate of 18% per annum on the sum of Rs.1,00,000/ (Rupees One Lac Only), from the defendant.
11. After preparation of decree sheet by the Reader, as per the aforesaid findings, the file shall be consigned to the record room.
Announced in open Court (Jay Thareja)
today on 03.04.2018 JSCC/ASCJ/GJ/EAST DISTRICT
Karkardooma Courts/Delhi
JAY
THAREJA
Digitally signed by JAY
THAREJA
Location: East District
Karkardooma Courts, Delhi
Date: 2018.04.03 16:39:46
+0530
Civil Suit No.465/2017
Ram Mohan Gupta v Kuldeep Chand
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